Opinion
July 15, 1985
Appeal from the Supreme Court, Queens County (Rotker, J.).
Order reversed, insofar as appealed from by the People, on the law, and that branch of defendant's omnibus motion which was to dismiss the murder count denied.
Cross appeal dismissed. No appeal lies from an intermediate order denying a motion to dismiss an indictment or a count thereof ( People v. Taylor, 99 A.D.2d 820).
The testimony given to the Grand Jury established that defendant, while in the company of the victim and a third person, removed the clip from his gun and aimed it point blank at the victim. Apparently there was still a bullet in the chamber of the gun because when defendant pulled the trigger, the victim was shot in the chest. She died of the gunshot wound, which penetrated her heart and lung.
Criminal Term dismissed the murder count of the indictment, stating that the proof failed to demonstrate to a prima facie level that defendant's conduct evinced the "depraved indifference to human life" required by Penal Law § 125.25 (2). We disagree.
A motion to dismiss an indictment on the ground of insufficiency will not be granted where the evidence before the Grand Jury was "legally sufficient to establish the offense charged or any lesser included offense" (CPL 210.20 [b]; 210.30; People v. Deitsch, 97 A.D.2d 327; People v. Leichtweis, 59 A.D.2d 383). The evidence must be viewed in the light most favorable to the People, and "it may be legally sufficient "although it does not even provide "reasonable cause" to believe that the defendant committed the crime charged' (Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 70.10, p 348)" ( People v. Warner-Lambert Co., 51 N.Y.2d 295, 299, cert denied 450 U.S. 1031). The burden of proof is on the defendant, who must make a clear showing of insufficiency ( People v Deitsch, supra, at p 329). The evidence before the Grand Jury was sufficient to establish that the defendant's act was imminently dangerous, presented a very high risk of death to the victim, and was committed under circumstances which evidenced a depraved indifference to human life ( People v. Register, 60 N.Y.2d 270, 274, cert denied 466 U.S. 953, 104 S Ct 2159; see, People v Robinson, 43 A.D.2d 963). Mangano, J.P., Gibbons, Bracken and O'Connor, JJ., concur.